C.R. No.2027 of 2009

27th July, 2009

Petitioner Counsel: Mr. A. K. JAISWAL
Respondent Counsel: Mr. K. L. ARORA

Cases Cited:
Manoj Aggarwal Vs. Smt. Sushma Aggarwal, AIR 2005 Uttaranchal 9 [Para PARA6,15]
Harihar Pershad Jaiswal Vs. Suresh Jaiswal, AIR 1978 Andhra Pradesh 13 [Para PARA6]

JUDGMENT

-The petitioner has been directed vide order dated 28.01.2009, by the Guardian Judge, Chandigarh, to produce the minor daughter Nitika on every second Saturday for two hours i.e., from 2:00 PM to 4:00 p.m., in the Court room in order to enable the respondent to meet the child during pendency of her petition under Sections 17, 25 & 26, of the Guardians and Wards Act, read with Sections 6 & 13 of the Hindu Minority and Guardianship Act, regarding custody of the minor child.

2. Feeling aggrieved by the said order of interim visitation rights granted to the respondent-mother of the child, this revision petition under Article 227 of the Constitution of India, has been filed by the petitioner. The petitioner had made an attempt to get the order dated 20.01.2009 reviewed by moving an application but vide order dated 31.03.2009, the same has been dismissed. The petitioner has challenged the validity of the said order also.

3. The respondent-mother of minor daughter Nitika has claimed a declaration from the Guardian Judge, Chandigarh, that she is natural guardian of the minor girl Nitika and has prayed for restoration of the minor child, who is under the control and custody of the petitioner by moving a petition under Section 17, 25 & 26 of the Guardians and Wards Act, read with Sections 6 & 13 of the Hindu Minority and Guardianship Act, claiming that the parties resided together as husband and wife at Chandigarh, in House No.1433, Sector 34-C, Chandigarh. Out of their wedlock, a female child Nitika was born on 25.11.2000, at Karnal as the respondent had been sent to her parents' house three months prior to the date of delivery. Thereafter, the respondent along with petitioner shifted to Mohali, where the petitioner allegedly developed illicit relations with teacher of the child Ms. Bharti, a divorced lady. The petitioner illegally snatched the daughter Nitika from the petitioner without her consent and sent the minor daughter to her sister Radha Malik living at Lucknow, she being issueless. Respondent claims that she had been deprived to impart motherly love and affection towards the minor child. The relations became sore thereafter. The respondent after having been tortured, beaten and abandoned was turned out of matrimonial home on 08.02.2007 when the minor child had already been sent to Lucknow by the petitioner. The respondent is residing with her parents at Karnal. The respondent had also filed a complaint under Sections 406 & 498-A, IPC, before Chief Judicial Magistrate, Karnal. An FIR also stands registered against the petitioner at Karnal. He was arrested by Karnal Police on 01.05.2007 and was released on bail on 03.05.2007. Another petition under Section 125 of the Criminal Procedure Code, is pending in the Court of Chief Judicial Magistrate, Karnal. The petitioner has also filed a divorce petition under Section 13 of the Hindu Marriage Act, at Ropar, though his residential address has been declared as 1433, Sector 34-C, Chandigarh. The respondent had filed a transfer application in the High Court for transferring the divorce petition from Ropar to Karnal. Vide order dated 08.10.2007, the divorce petition pending at Ropar was transferred to Karnal. As the child had been snatched from the respondent without her consent and permission and sent to Lucknow, it has been claimed that it is in the welfare of the child that her custody be handed over to the respondent-mother who is natural guardian. She has also undertaken that petitioner can have the visitation rights with the minor child.

4. In reply filed to the petition for custody and interim visitation rights, the petitioner strongly challenged the territorial jurisdiction of the Guardian Judge, at Chandigarh, to entertain and decide the petition as the same was hit by Section 9 of the Guardians and Wards Act (for short 'the Act'). It was claimed that the minor child Nitika ordinarily resides at Lucknow and is studying in Class-III of Study Hall School, Vipul Khand II, Gomti Nagar, Lucknow and the child is in the factual and constructive custody of Mrs. Radhika Malik, real sister of the petitioner as the minor child had been left by the respondent-mother. In a very callous and indifferent manner she had abandoned her matrimonial home at Mohali, when the petitioner was away on tour while on official duty.

5. From the pleadings of the parties, it is apparent that the respondent claims that the parents of the petitioner are residing in House No.1433, Sector 34-C, Chandigarh, but the minor child ordinarily resides at Lucknow, with the sister of the petitioner. Vide order dated 20.01.2009 (Annexure P-17), the Guardian Judge, vide interim order granted visitation rights to the respondent to meet the child on every second Saturday, in the Court room. The question of jurisdiction had been raised by the petitioner before the Guardian Judge. In the impugned order, it has been observed that the issue regarding jurisdiction has separately been framed and it is a matter of evidence which is yet to be led by the parties.

6. Counsel for the petitioner Mr. A. K. Jaiswal, has vehemently contended that the trial Court has acted illegally in excluding the question of jurisdiction, in context to the provisions of Section 9 of the Hindu Minority and Guardianship Act, has decided the application for visitation rights. He placed reliance on AIR 2005 Uttaranchal 9, Manoj Aggarwal and another Vs. Smt. Sushma Aggarwal and another, to contend that objection as to jurisdiction of the Court in entertaining an application for production of minor child by a Guardian Judge exercising powers under Guardians and Wards Act under Section 12 is an error, without deciding the issue of jurisdiction. He also relied upon AIR 1978 Andhra Pradesh 13, Harihar Pershad Jaiswal Vs. Suresh Jaiswal and others, to contend that it is not the place of residence of the natural guardian that gives the jurisdiction of the Court under Section 9 of the Act, but it is the place of ordinary residence of the minor and the Legislature has designedly used the word, "where the minor ordinarily resides" in the said Section. He argued that the actual residence of the minor in this case is Lucknow, as such, the order passed by the Guardian Judge at Chandigarh is without jurisdiction. In order to establish that the child is residing at Lucknow, he referred to Annexure P-10, a School Certificate issued from Lucknow, on 20.07.2008, a group photograph of the child taken in the school. Reliance was placed on a document (Annexure R-3) placed on record by the petitioner which is a copy of the reply filed by the petitioner in a transfer petition under Section 24 of CPC. It has been admitted therein that the child had been residing at Chandigarh. He also referred to Annexure R-2, a copy of the transfer petition filed by the respondent in which the wife had mentioned two addresses of the petitioner i.e., House No.1433, Sector 34-C, Chandigarh and SCF No.177, Top Floor, Sector 38-D, Chandigarh, claiming that the petitioner ordinarily resides at Chandigarh and the child will be deemed to have the same residential address as that of the natural guardian.

7. I have heard counsel for the petitioner as well as counsel for the respondent.

8. The short question which is required to be determined in the present case is whether prima facie the Guardian Judge, Chandigarh, could be said to have been vested with jurisdiction to decide the petition for the custody of the minor child under the Guardian and Wards Act, on account of the fact that a controversy has been raised by the petitioner that the minor child whose custody is claimed, is at present residing at Lucknow. The petitioner claims that as the issue regarding jurisdiction of the Court has been framed, unless and until, the said issue is decided, no order regarding interim custody or visitation rights could have been passed. He claims that the adjudication of the application for custody of the minor cannot be decided till objection regarding the jurisdiction of the Court in entertaining the said application filed by the petitioner is decided. As both the parties, on the basis of the documents available with them containing admissions of each other regarding the existence of child at present at Lucknow, it will not be prudent to pre-judge the issue of jurisdiction by giving a finding on appreciation of evidence. The rights of the parties will be prejudiced in case the issue of jurisdiction, which in the present case, seems to be an issue of fact and law is decided by this Court. The said issue framed has to be determined in the peculiar facts and circumstances of this case, taking into consideration the provisions of Section 9 of the Act, 1890, in context with the relevant provisions of other procedural laws.

9. Section 9 of the Guardian and Wards Act, reads as follow:-

'9. Court having jurisdiction to entertain application.-

(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.

(2) If the application is with respect to the guardianship of the property of minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.

(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.'

10. A perusal of Section 9 indicates that it contemplates the territorial jurisdiction of the Court in the matter of Guardianship application. First, when the application is in respect of the person of a minor, it is to be filed at the Court under whose territorial jurisdiction, the minor ordinarily resides. Secondly, if application relates to the property of the minor, there are two forums and the applicant may choose any of them, namely, the Court under whose territorial jurisdiction, the minor ordinarily resides or under whose territorial jurisdiction minor has property. But when in property application, the applicant chooses the first forum, namely, the residence forum, the District Court of the place may return the plaint, if the Court considers that the application would be disposed of justly and conveniently by some other Court. It is pertinent to observe here that there is nothing in the Guardians and Wards Act, forbidding the applicability of Civil Procedure under this statute.

11. Section 4(1) of CPC reads as follows:-

'4. Savings. - (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.'

12. Counsel for both the parties agree that the question whether provisions of CPC, are applicable in proceeding under Guardians and Wards Act, is not involved, as such, it is left open. What is required to be determined in the present case is whether in the circumstances of this case can it be said that on account of Nitika being ordinarily residing at Lucknow, the Guardian Court at Chandigarh, will have no jurisdiction.

13. Section 9(1) makes it clear that it is the ordinary place of residence of minor which determines the jurisdiction of a particular Court to entertain an application for guardianship of the minor. Such jurisdiction cannot be taken away by temporary residence elsewhere at the date of presentation of the challan. The term 'residence' is an elastic word of which an exhaustive definition cannot be given. It is differently construed according to the purpose for which enquiry is made into meaning of the term. The sense in which it should be used is controlled by reference to the objector. A reasonable meaning of 'residence' would mean dwelling in a place for some continuous time. The word 'ordinarily resides' in sub Section 1 means mere a temporary residence, even though, it will be of such temporary residence may be considerable. Word ordinarily resides would mean a regular, normal, a settled home or a regular place of abode, which can be distinguishable from a temporary or a forced stay. If a minor child has been removed either by stealth or by compulsion and kept at a different place than the house of a natural born, the same cannot be said to be a place where the child 'ordinarily resides.' The respondent has in her petition for the custody of the child specifically mentioned and actually admitted that the child has been taken to Lucknow. She also explained the circumstances that the child had been snatched from her when she was residing at Mohali, where the couple had shifted after three years of marriage. In the petition for custody of the child, the address of the petitioner has been shown to be House No.1433, Sector 34-C, Chandigarh i.e., the house of his parents and another address of Sector 38-D. If the averments in the petition are carefully perused, it is apparent that the place where the child at present is staying is not a permanent place of residence of the child. It appears to be temporary and transitory. It is a place where the child has been sent to someone who is not the natural guardian. The child cannot be said to be ordinarily residing at Lucknow, especially when the respondent claims that child has been forcibly and against her wishes sent to a near relation of her husband. Even if it is presumed that the child had been sent with the consent of the respondent to the house of sister of the petitioner at Lucknow, on account of she being issueless lady, the same will not tantamount to a conclusion that the temporary place of residence would be a place where the child ordinarily resides. The child is said to ordinarily reside at a place where he is expected to be ordinarily found with his natural guardian but when against the wishes of one of the parents, the child has been sent to a person related, it will not tantamount to a presumption that the place where the child 'ordinarily resides' has been shifted. Generally, the matrimonial house or the house of the parents is considered the family residence of a minor unless and until there are extra ordinary reasons to arrive at a conclusion that the place of ordinary residence has been shifted. The circumstances under which a child has been compelled to reside at another place cannot be said to be a regular, normal or settled home. It cannot be laid down as a hard and fast rule that a minor child will be deemed to be permanently residing at a place where there is matrimonial home but depending on the circumstances, under which he has been removed from the matrimonial home will have to be considered to arrive at a conclusion whether the place where he has been shifted can be said to be a place where he ordinarily resides for the purpose of Section 9 of the Guardians and Wards Act.

14. I have considered the judgments cited by the counsel for the petitioner.

15. In Manoj Aggarwal's case (supra), Uttaranchal High Court in context to provisions of Order 7, Rule 11(d) of the Code of Civil Procedure, observed that the jurisdiction is to be seen on the basis of the allegations contained in the plaint etc. In the present case, the petition filed by the respondent cannot be rejected under Order 7, Rule 11(d) of the Code because from the statement in the petition, it does not appear to be barred by any law.

16. In the above circumstances, I am of the considered opinion that prima facie, the Guardian Judge, at Chandigarh, seems to have a jurisdiction as in ordinary sense, the expression 'resides' means to make an abode for a considerable time; to dwell permanently or for a length of time or to have a suitable abode for the time and as the child cannot be said to be dwelling permanently at Lucknow, the application for interim visitation rights of the child could not have been dismissed for want of jurisdiction.

17. In view of above circumstances, the present revision petition is dismissed.

Revision dismissed.